Affirmed and Opinion filed August 16, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00777-CR

FELIX AMADOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1269365

O P I N I O N

A jury convicted appellant Felix Amador of aggravated robbery and assessed his 

punishment at eighteen years’ imprisonment. In his first two issues on appeal, appellant 

contends that the trial court erred in permitting a police officer to testify regarding 

complainant’s out of court statements because such testimony violated the right to 

confront witnesses and constituted inadmissible hearsay. In his third issue, appellant 

challenges the sufficiency of the evidence to sustain the verdict. We affirm.
2

Background

According to their testimony at trial, Ruth and Randy Blalock arrived together at 

their workplace on the morning of June 9, 2010 between 6:40 and 6:45 a.m. Milton 

Flores, a co-worker of Ruth and Randy, pulled into the parking lot in his vehicle 

immediately behind them. Flores, the complainant, died prior to trial but not from 

injuries sustained during the alleged robbery.

Randy testified that he got out of his vehicle, retrieved some items from his 

backseat, and headed towards the front door of the building. Ruth stayed in the vehicle

for a moment to apply makeup. Randy turned to see where Flores was, because typically 

Flores would be waiting at the front door for Randy to open it. Randy saw Flores 

standing by Flores’s car with a Ford F-150 truck parked behind him at an angle. Pointed 

out of the window of the truck was a shotgun directed at Flores. Randy observed 

someone he described as thin, not very tall, and Hispanic get out of the passenger side of 

the truck. Concerned for his safety, Randy stepped behind a column and repeatedly and 

loudly said to Ruth “gun” until she looked and saw the gun pointed at Flores.

Ruth testified that after hearing Randy say “gun,” she got out of her vehicle and 

moved to where she could observe “the occurrence.” She observed that the passenger 

who exited the Ford F-150 held a semiautomatic handgun and that there was a shotgun 

pointed out of the truck’s window. Ruth heard Flores say, “I can’t believe it’s you, you 

would do this right here in front of everybody.” Ruth also heard the driver of the truck

tell Flores he needed to get down on the ground and that he had a choice between “his life 

or his car.” Ruth was able to see the faces of the two men with the truck and identified 

appellant in the courtroom as the driver. Ruth had identified a different man as the driver 

on the day of the incident when police presented her with a photo spread, but she 

explained at trial that she could identify him more accurately in person.

Randy further testified that Ruth startled the passenger with the handgun when he 

noticed her standing near him. Flores then took that opportunity to run towards Randy. 

Randy described Flores as flustered, scared, and talking excitedly. Specifically, Flores 
3

said, “I can’t believe he did that. I know him. That was Felix.” After the gunmen drove 

away, Ruth called 911.

At approximately 6:45, Flores called his wife, Lina Ceron. Ceron testified that a 

very upset Flores told her over the phone that “Felix” had arrived at his job, pulled out a 

gun, and demanded his car or his life. Ceron further testified that appellant was the only 

person she and Flores knew by the name “Felix.” She also explained that Flores and 

appellant “had been having trouble since high school” and that there was “bad blood” 

between them.

Ruth testified that the police arrived approximately 10 to 15 minutes after she 

called 911. The responding police officer, Officer George Grifno, testified that Flores 

told him that one of the gunmen was Felix Amador and that they had gone to school 

together. Defense counsel objected to this testimony as hearsay. The State did not 

specifically ask Officer Grifno whether or not Flores appeared excited or under duress at 

the time the statements were made. 

Appellant’s ex-girlfriend, Erin Allender, testified that she picked appellant up 

from jail in late-June 2010. She then accompanied him to an IHOP restaurant where he 

told her that he “went to go hit a lick, it went wrong, Milton recognized him.” She 

explained that “to hit a lick” is to either break into somebody’s car or rob them.

Testimonial Hearsay

In his first issue, appellant contends that the trial court erred in admitting Officer 

Grifno’s testimony regarding Flores’s out-of-court statements because such testimony 

violated appellant’s right to confrontation. The Confrontation Clause of the Sixth 

Amendment to the United States Constitution provides: “In all criminal prosecutions, the 

accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. 

Const. amend. VI. In Crawford v. Washington, the United States Supreme Court spelled 

out the parameters of this right and specifically held that it was a violation of the Sixth 

Amendment for a court to admit testimonial statements of a witness who did not appear 
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at trial unless that witness was unavailable to testify and the defendant was afforded a 

prior opportunity for cross-examination. 541 U.S. 36, 68 (2004).

1

 The Court explained 

that generally a statement should be considered “testimonial” if it constitutes a solemn 

declaration made for the purpose of establishing some fact. Id. at 51. While the Court 

declined in Crawford to provide a comprehensive definition, it advised that certain 

classes of “core” statements should be regarded as testimonial, including: (1) “statements 

that were made under circumstances which would lead an objective witness reasonably to 

believe that the statement would be available for use at a later trial,” and (2) statements 

taken by police officers “in the course of interrogations.” Id. at 51-52.

In Davis v. Washington, the Court clarified that not all statements taken by police 

officers are testimonial. 

Statements are non-testimonial when made in the course of police 

interrogation under circumstances objectively indicating that the primary 

purpose of the interrogation is to enable police assistance to meet an 

ongoing emergency. They are testimonial when the circumstances 

objectively indicate that there is no such ongoing emergency, and that the 

primary purpose of the interrogation is to establish or prove past events 

potentially relevant to later criminal prosecution.

547 U.S. 813, 822 (2006).

2

The Court went on in Michigan v. Bryant to explain that “[t]o 

determine whether the ‘primary purpose’ of an interrogation is ‘to enable police 

assistance to meet an ongoing emergency,’ which would render the resulting statements 

nontestimonial, we objectively evaluate the circumstances in which the encounter occurs 

and the statements and actions of the parties.” 131 S. Ct. 1143, 1156 (2011)3; see also 

Coronado v. State, 351 S.W.3d 315, 324 (Tex. Crim. App. 2011) (“Under Davis [and 

 

1

In Crawford, the defendant’s wife had given a tape-recorded statement to the police the night of 

the incident. At trial, defendant claimed marital privilege.

2 The facts of Davis itself involved admission of statements made during a telephone call to 9-1-

1. 547 U.S. at 826-27. The Court determined that such statements were nontestimonial because not 

“designed primarily to establish or prove some past fact, but to describe current circumstances requiring 

police assistance”; therefore, admission did not violate the right to confrontation. Id. at 827 (internal 

quotation marks omitted).

3 Bryant involved statements made by the dying victim to police officers who discovered him. 

131 S. Ct. at 1150.
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Bryant,] the primary focus in determining whether an out-of-court statement is 

‘testimonial’ is on the objective purpose of the interview or interrogation, not on the 

declarant’s expectations.”). The Bryant court also emphasized that for an ongoing 

emergency to exist, there does not have to be a continuing threat to the original victim but 

instead there could be a continuing threat to the general public or even the police 

responding to the situation after the initial threat to the first victim had been neutralized. 

Id. at 1156, 1158.

We have also previously identified the following principles as useful in 

determining whether particular statements are testimonial: (1) testimonial statements are 

official and formal in nature, (2) interaction with the police initiated by a witness or the 

victim is less likely to result in testimonial statements than if initiated by the police, (3) 

spontaneous statements to the police are not testimonial, and (4) responses to preliminary 

questions by police at the scene of the crime while police are assessing and securing the 

scene are not testimonial. Dixon v. State, 244 S.W.3d 472, 482 (Tex. App.—Houston

[14th Dist.] 2007, pet. ref’d) (citing Ruth v. State, 167 S.W.3d 560, 568–69 (Tex. App.—

Houston [14th Dist.] 2005 pet. ref’d)). We review a constitutional legal ruling such as 

this under a de novo standard of review; however, we defer to the trial court on issues of 

historical fact. Id. at 482.

Here, the State concedes that the complainant was not available to testify and that 

appellant had no opportunity to cross-examine him; however, the State argues that 

complainant’s statements were obtained by Officer Grifno in order to address an ongoing 

emergency and thus were not testimonial. We agree.

The statements in question were made to Officer Grifno as he was responding to a

report of an armed robbery while at the scene of the crime and shortly after the crime had 

occurred. Grifno testified that he arrived at the scene within minutes of receiving the 

call. He said that he had reason to believe at the time that armed assailants were still in 

the area and his primary goal was to “[p]ut out as much information about the suspect as 

[he could] over the radio for any other officers in the area.” He intended to make sure 
6

that “no other laws [were] broken” and no one else was “put at risk.” After obtaining a 

description of the assailants from complainant, Grifno put out a notice for other officers 

in the area to be on the lookout for two Hispanic males in a Ford F-150. Grifno also 

testified that complainant stated he was afraid that at the time of the robbery, he was 

going to be shot. 

Grifno’s testimony regarding the circumstances surrounding complainant’s 

statements supports the conclusion that the primary purpose of obtaining the statements 

was to respond to an ongoing emergency. Consequently, the statements were 

nontestimonial, and their admission did not violate the confrontation clause. See, e.g., 

Vinson v. State, 252 S.W.3d 336, 339-40 (Tex. Crim. App. 2008) (holding identification 

of assailant while officer was still “assessing the situation” and before defendant was 

secured in patrol car was nontestimonial); Wilson v. State, 296 S.W.3d 140, 147-48 (Tex. 

App.—Houston [14th Dist.] 2009, pet. ref’d) (holding descriptions of offense and suspect 

were nontestimonial when given at the scene after burglary suspect had fled). We 

overrule appellant’s first issue.

Excited Utterance

In his second issue, appellant asserts the trial court erred in admitting Officer 

Grifno’s testimony about the complainant’s out-of-court statements over a hearsay 

objection. The State argues in response that the testimony was admissible under the 

excited utterance exception to the hearsay rule.4

 

4

It is unclear if appellant’s hearsay objection to a question asking who complainant said tried to 

rob him was intended to cover testimonial hearsay only under the confrontation clause or also under 

general hearsay under the Texas Rules of Evidence. We will, however, consider appellant’s general 

hearsay complaint in the interests of completeness and justice.

Appellant suggests that the trial court erred in admitting the testimony regardless of whether it 

was an excited utterance because the State did not raise the excited utterance exception as a ground for 

admission at trial. We have previously held, under similar circumstances, that the proponent of hearsay 

testimony is not required to specifically state an exception to the hearsay rule in order for the overruling 

of a hearsay objection to be affirmed based on the exception. See Ortega v. State, 126 S.W.3d 618, 620-

22 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d); see also 43A George E. Dix et al., Texas Practice 

Series: Criminal Practice and Procedure § 53:119 (3d ed.) (discussing Ortega).
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Hearsay is a statement, other than one made by the declarant while testifying at the 

trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. 

Evid. Rule 801(d). Hearsay is generally not admissible unless it fits one of the 

exceptions provided in the Texas Rules of Evidence or other rule or statute. Id. 802. For 

the excited utterance exception to apply, three requirements must be shown: (1) the 

statement must be the product of a startling occurrence that produces a state of nervous 

excitement in the declarant and renders the utterance spontaneous, (2) the state of 

excitement must still so dominate the declarant’s mind that there is no time or 

opportunity to contrive or misrepresent, and (3) the statement must relate to the 

circumstances of the occurrence preceding it. See id. 803(2); Kesaria v. State, 148 

S.W.3d 634, 642 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 279 (Tex. 

Crim. App. 2006). The admissibility of an out-of-court statement under the exceptions to 

the general hearsay exclusion rule is within the trial courts’ discretion. Kesaria, 148 

S.W.3d at 641. An abuse of discretion occurs “only when the trial judge’s decision was 

so clearly wrong as to lie outside that zone within which reasonable persons might 

disagree.” Id. (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)).

The critical determination in regard to the excited utterance exception is whether 

the declarant was still dominated by the emotions, excitement, fear, or pain of the event 

or condition at the time he or she made the statement. Tyler v. State, 167 S.W.3d 550, 

555 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). We may consider the time 

elapsed between the event and the statement and whether the statement was in response 

to questioning, but these factors are not necessarily dispositive. Id. Ultimately, we must 

determine whether the statement was made under such circumstances as would 

reasonably show that it resulted from impulse rather than reason and reflection. Id. 

Evidence demonstrated that shortly before complainant made the statement 

recounted by Grifno, complainant had been the victim of an armed robbery at gunpoint

and, according to the testimony of the Blaylocks and complainant’s wife, this experience 

caused complainant to be very excited. It is also clear that the statement was related to 
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the circumstances of the occurrence preceding it; in the statement, complainant identified 

appellant as one of the armed robbers. 

While Grifno did not specifically testify regarding complainant’s demeanor at the 

time complainant made the recounted statement, evidence indicated Grifno arrived at the 

scene and received the statement shortly after the startling event itself. See, e.g., Jackson 

v. State, 110 S.W.3d 626, 634 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) 

(holding 15 to 20 minutes after aggravated assault with a deadly weapon was not too long 

for the excited utterance exception to apply). Grifno also testified that complainant 

indicated the event itself frightened him. And as stated, the Blaylocks and complainant’s 

wife described complainant as being in an excited state after the robbery attempt and 

immediately before Grifno arrived and questioned complainant. Under these 

circumstances, the trial court did not abuse its discretion in admitting the hearsay 

testimony under the excited utterance exception.

Furthermore, even if the trial court had committed error in this regard, such error 

would have been harmless. Under Texas Rule of Appellate Procedure 44.2(b), we must 

disregard non-constitutional error that does not affect a defendant’s “substantial rights,” 

i.e., if upon examining the record as a whole, there is a fair assurance that the error did 

not have a substantial and injurious effect or influence in determining the jury’s verdict. 

Tex. R. App. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). 

The error of admitting hearsay will not result in reversal when other such evidence was 

received without objection, either before or after the complained-of ruling. Leday v. 

State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). If the error had no or only a little 

influence on the verdict, it is harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. 

Crim. App. 1998).

Similar statements to those recounted by Officer Grifno were also testified to by 

the Blaylocks and complainant’s wife. While the testimony of Officer Grifno may 

potentially have carried more weight with the jury because he is a member of law 

enforcement, there was considerable other evidence of appellant’s guilt. Ruth Blaylock 
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identified appellant in court as one of the robbers. Complainant’s wife testified 

complainant and appellant knew each other and did not get along. Appellant’s exgirlfriend testified that he told her the robbery went wrong because “Milton recognized 

him.” Considering all of the evidence presented, the out-of-court statements recounted 

by Grifno likely had little influence on the verdict. Therefore, even if admission of the 

out of court statements was error, it was harmless error. Accordingly, we overrule 

appellant’s second issue. 

Sufficiency of the Evidence

In his third issue, appellant asserts that the evidence was insufficient to support the 

jury’s verdict. When reviewing the sufficiency of the evidence, we view all of the 

evidence in the light most favorable to the verdict to determine whether a rational jury 

could find the essential elements of the crime beyond a reasonable doubt. Isassi v. State,

330 S.W.3d 633, 638 (Tex. Crim. App. 2010). This court may not substitute its judgment 

for that of the fact finder by re-evaluating the weight and credibility of the evidence. Id. 

We review the evidence to ensure it actually supports a conclusion that the defendant 

committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

To support a conviction of aggravated robbery as charged in this case, the 

evidence must have demonstrated appellant committed a robbery while using or 

exhibiting a deadly weapon. See Tex. Pen. Code § 29.03. Among other possibilities, a

person commits robbery if, in the course of committing theft and with intent to obtain or 

maintain control of the property, he intentionally or knowingly places another in fear of 

imminent bodily injury or death. Tex. Penal Code § 29.02(a). 

Under this issue, appellant argues that the failure of any witness to positively 

identify him as participating in the robbery prior to the day of trial undermines the verdict 

to such a degree that the evidence was insufficient to sustain it. Appellant specifically 

emphasizes that Ruth Blaylock—the only person to identify appellant as a perpetrator in 

court—was unable to identify appellant in a “photo spread” shortly after the robbery. 

However, Ruth explained at trial that she was better able to recognize appellant in person 
10

than she had been in the photo spread. Also, any inconsistency in Ruth’s identification is 

a matter to be weighed by the jury in its determination of guilt and innocence and not 

something that by itself renders the evidence insufficient. See Fite v. State, 60 S.W.3d 

314, 318 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

Moreover, as discussed under the previous issue, there was considerable evidence 

indicative of appellant’s guilt. Four different witnesses testified that the complainant 

identified someone he knew as “Felix” as one of the perpetrators, one of those witnesses 

(Grifno) specifically recounted complainant identifying “Felix Amador” as a perpetrator, 

and complainant’s wife explained that appellant was the only person she and her husband 

knew by the name “Felix.” Appellant’s ex-girlfriend also testified that they had a 

conversation where he told her that he “went to hit a lick” and the reason it went wrong 

was because “Milton recognized him.” Based on this evidence, a rational jury could have 

found the essential elements of the crime beyond a reasonable doubt. Accordingly, we 

hold the evidence legally sufficient to show that the appellant committed aggravated 

robbery and affirm the jury’s finding. 

Having overruled each of appellant’s issues, we affirm the trial court’s judgment.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Boyce, Christopher, and Jamison.

Publish — TEX. R. APP. P. 47.2(b).